Social networking evidence presents challenge in prosectuion over alleged threats made after Virgina Tech shootings

Professor Goldman kindly emailed me a copy of the U.S. District Court for the Middle District of Pennsylvania’s decision in the case of U.S. v. Voneida. This criminal prosecution arose out of some postings that defendant Voneida is alleged to have made on his MySpace page about last April’s Virginia Tech shootings.

The court approached the case with all the awe for the Internet suitable for 1994:

[Voneida’s statements] did not occur in a moment, like words being spoken; nor were they sent from one place to another once and only once, like mailing a letter, broadcasting a message over television or radio, or even sending an email. Rather, Defendant’s comments were communicated, and had the potential to reach an audience, for at least nine days. This is one of the ways in which speech on the internet, and on social networking sites in particular, challenges existing methods of legal analysis.

In this case, the feds claimed that Voneida’s postings ran afoul of 18 U.S.C. 875(c), which prohibits the transmitting in interstate commerce of “any threat to injure the person of another.” Voneida filed a motion in limine requesting that several pieces of evidence be excluded at trial.

One of the pieces of evidence that Voneida wanted kept out was an email message that a student in Pennsylvania sent to university authorities to report the postings. The court denied Voneida’s request on this point.

The court held that in determining whether Voneida’s statements were “true threats,” it would be instructive for the jury to consider the effect of the statements on their audience. Addressing this point, the court observed the following about an online “audience”:

Even if [the student who reported the postings] was an unintended viewer, the context of the internet and social networking sites like Myspace.com may make her part of Defendant’s audience regardless of his intent to reach her as opposed to others. As a part of his audience, her response to his comments is relevant and properly considered when evaluating whether they are “true threats.”

A few more facts would be interesting. What if a social network participant adjusts his profile settings to allow only “friends” see the content? Would the so-called “audience” still be the world at large? To what extent can a publisher technologically constrain his or her audience?

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Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).